This week at the Court: In Plain English

Posted Thu, June 2nd, 2011 2:33 pm by Lisa McElroy

It's officially June! If you are a baseball fan, you know all about the excitement of the post-season. Because the Court concludes its oral arguments in April, May and June are the post-season for Court watchers. Perhaps a bit surprisingly, the Court only issued two opinions this week, and no others are expected until at least next Monday. That means that the next three weeks will be action packed; the Justices still have to issue opinions in thirty-one merits cases. That's right, more than a third of the Term's cases are still undecided, at least from the public's perspective.

Tuesday's headliner was undoubtedly Ashcroft v. al-Kidd, a case originally brought by Abdullah al-Kidd, a U.S. citizen, against former Attorney General John Ashcroft. Al-Kidd, who converted to Islam as an adult, was arrested in 2003 as he prepared to board a plane to study in Saudi Arabia; the government then detained him for sixteen days "“ often in very harsh conditions "“ before releasing him. The government never charged al-Kidd with a crime; instead, it relied on the federal material witness statute "“ which allows the government to detain witnesses who are needed for a trial but might flee "“ to justify his arrest. However, al-Kidd was never asked to testify in any trial. So al-Kidd filed a lawsuit, arguing that Ashcroft had violated the Constitution by using the material witness statute as an excuse to hold him when there was no evidence to arrest him and charge him with a crime.

The Ninth Circuit allowed al-Kidd's claim against Ashcroft to go ahead, but on Monday the Court (with Justice Kagan recused) unanimously reversed. The Court first agreed with Ashcroft that al-Kidd's arrest did not violate the Fourth Amendment. Al-Kidd was arguing, the Court explained, that his arrest was unconstitutional because the government had an improper motive; it didn't want him to testify as a material witness at all, but only wanted him in custody because it thought he was a terrorist. But, the Court continued, whether something violates the Fourth Amendment doesn't depend on whether the government had a bad motive for the search or seizure.

The Court next concluded that Ashcroft could not be held liable because he was entitled to qualified immunity. As I explained it last week in my discussion of Camreta v. Greene, government officials are "immune" from suit (or cannot be sued) for their official acts unless it was "clearly established" that their actions were illegal or unconstitutional. As Justice Scalia explained in the Court's opinion in al-Kidd, qualified immunity allows officials to act reasonably without fear of liability "“ even if they make mistakes. In other words, because Ashcroft's actions were not clearly illegal under already established law (indeed, they didn't violate the Fourth Amendment at all), he would be entitled to qualified immunity.

Al-Kidd's lawsuit against Ashcroft may be over, but "“ as some of the more "liberal" Justices made clear in their concurring opinions "“ the Court did not resolve the bigger question of when the use of the material witness statute to detain someone could be illegal or unconstitutional. And those Justices suggested that a detainee in a case like al-Kidd's might still prevail in a future challenge to the use of the statute. To sum the case up, as as Tom explained on NPR yesterday, “[t]he reason that this decision is unanimous is everybody wins. The conservatives protect the attorney general but the more liberal justices, and Justice Kennedy, hold the door open for a later decision that says, ‘You can’t use the material witness statute just to hold anybody you like, and if you lie to the magistrate you can get sued for that, too.’ ”

Tuesday's other opinion, Global-Tech Appliances, Inc. v. SEB, while not as splashy, was of particular interest to patent lawyers "“ and maybe to those of us who love fried chicken. In this case, a French company (SEB) developed and patented a deep fryer that stayed cool on the outside; a Hong Kong company (owned by petitioner Global-Tech) then copied the technology and sold fryers to U.S. suppliers. SEB then sued Global-Tech, arguing that it had caused the infringement, or violation, of its patent for the deep fryer. Global-Tech countered that it couldn't be held liable because it didn't know that SEB had a patent. And, it argued, it had consulted with a lawyer, who concluded that Global-Tech's fryer did not violate any patents; however, Global-Tech did not tell the attorney that it had copied SEB's fryer. A jury ruled in favor of SEB, and the intermediate court, the U.S. Court of Appeals for the Federal Circuit, agreed that Global-Tech was liable because it was "deliberately indifferen[t]" to the risk that it was infringing on SEB's patent.

By a vote of eight to one, the Court held that courts should use a higher standard to determine whether someone caused a patent violation. The question, the Court explained, is whether the defendant either knew that his actions were illegal or was "willfully blind" to that possibility (which, the Court says, is essentially the same as having knowledge). But Global-Tech was still liable for its patent violations, the Court continued, because its actions met even the higher standard.

The case is interesting for a few reasons, some (but not all) of which are related to intellectual property law. First, while the Court upheld the result reached by the Federal Circuit (a special federal appeals court that hears mostly patent cases), it used an entirely different rule to do so. This is not a huge surprise; although the Justices are generalists (as I explained a couple of weeks ago) and many Federal Circuit judges are intellectual property specialists, the Supreme Court reverses, or disagrees with, the Federal Circuit with some regularity. In fact, the Federal Circuit and the Ninth Circuit vie for the "honor" of most-reversed (a designation that makes lower court judges less than happy). Global Tech is also important because some inventors see it as giving them more freedom and a lower risk of lawsuits. As many forms of technology (such as cell phones) have similar features, the higher standard protects those who unintentionally create products that seem like protected ones.

This Term has also been a big one for patent cases, and there's still at least one big opinion to come, in Board of Trustees of the Leland J. Stanford University v. Roche Molecular Systems. After last Term's huge decision in Bilski v. Kappos, the patent bar has been watching the Court very closely. This Term, the Justices are again demonstrating that, even though they may not know as much about patents as their colleagues on the Federal Circuit do, they are not afraid to venture into unknown territory.

But the Court's decision in Global-Tech is likely to have ripple effects far beyond patent law. In fact, Ronald Mann "“ writing for this blog "“ predicts that the case will be one of the "most commonly cited decisions of the Term." Why? Although the Court was considering the standard for patent violations, many federal criminal laws also require proof of either knowledge or willful actions by the defendant. And in its opinion in this case, the Court made clear that the knowledge requirements in those criminal statutes can also be met with proof that the defendant was "willfully blind" to the possibility that his conduct might violate the law.

While their opinions may feel formal, some of the Justices this week gave us a glimpse into their everyday lives. (Supreme Court Justices . . . they're just like us!) Over the weekend, Justice Breyer broke his collarbone while riding his bike near his house in Cambridge, Massachusetts (his second serious biking accident). An ardent Phillies fan, Justice Alito took in a game between his hometown team and the Washington Nationals. And Justice Stevens talked like any other Court watcher "“ not like a retired Justice "“ about the Court's decision-making this Term. Soon, the Justices will be taking off for the summer "“ they travel all over the world, giving talks, teaching summer school, and vacationing like regular folk "“ but they (and their clerks) have a lot of work to do before then.

Trinity Lutheran Church of Columbia, Inc. v. ComerThe Missouri Department of Natural Resources' express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.

Hernández v. Mesa(1) A Bivens remedy is not available when there are "special factors counselling hesitation in the absence of affirmative action by Congress," and the court recently clarified in Ziglar v. Abbasi what constitutes a special factor counselling hesitation; the court of appeals should consider how the reasoning and analysis in Ziglar bear on the question whether the parents of a victim shot by a U.S. Border Patrol agent may recover damages for his death; (2) It would be imprudent for the Supreme Court to decide Jesus Hernandez’s Fourth Amendment claim when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case; and (3) with respect to Hernandez’s Fifth Amendment claim, because it is undisputed that the victim's nationality and the extent of his ties to the United States were unknown to the agent at the time of the shooting, the en banc court of appeals erred in granting qualified immunity based on those facts.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.